Deterrence theory is based on the concept that, if the consequence of committing a crime outweighs the benefit of the crime itself, the individual will be deterred from committing the crime. This is founded in the idea that all individuals are aware of the difference between right and wrong and the consequences associated with wrong or criminal behaviors (Schalleger, 2002). When they act in a criminal manner, they do so out of free will and weigh the consequences of their actions-they know what they are doing and choose to do it. This paper will attempt to give an historical perspective on the development of deterrence theory; it’s incorporation into the justice system and how it has affected the current U.S. justice system.
Deterrence theory has played a role in societies throughout history. One of the earliest examples of deterrence theory was during the Feudalist era between the ninth and fourteenth centuries. The Feudalist era was part of the Middle Ages and characterized by lords (men of power and asset), vassals (individuals loaned land by the lords) and fiefs (lands). In exchange for the lands, the vassal would pledge military allegiance to the lord loaning the lands. This period of English history inherited a relatively unchanged judicial system that came from the Anglo Saxon era dating back to 600 AD, often referred to as the Dark Ages (Brittain Express, 2006). The Anglo Saxon period was brutal and the strong dictated to the weak. Laws during the Feudalist era were designed, for the most part, to keep the peasants in their place. Laws were enacted to deter the peasants from attempting to rise above their station in life or challenge the status quo. Punishment for crimes during this period was not enforced unless the person receiving the punishment was considered a subordinate to the person upon whom the crime was committed.
When Henry VII (1457 – 1509) took the throne at the beginning of the Tudor period, he began to move belief toward the idea of royal absolutism and the divine right of kings to be omnipotent, answering to no one. This totalitarian perspective was firmly imprinted on the system of justice. Incarceration was not a common form of punishment. Prisons were simply holding areas where prisoners were kept until trial and sentencing. Trials were one sided in favor of the prosecution. Defendants were not allowed legal counsel and justice was swift and brutal.
During the reign of Henry VIII (1491 -1547), it was believed that extremely cruel and unusual punishment, in a public setting, would deter wrong doers from committing additional civil discord (if they lived through it)(Bartollas, 2002). The affects of the judicial system were directly connected to an individual’s station in life. Someone wealthy or influential could often commit offenses with impunity, while someone of lesser birth would be severely punished for the same offense. Public flogging, hangings and beheadings were common features in the public arena. Some individuals were hanged until almost dead, then taken down and drawn and quartered. Henry VIII had two of his many wives, Anne Boleyn and Catherine Howard, beheaded on the grounds of adultery. These examples of punishment dealt to those who displeased the king acted as strong deterrents to those who served in the Royal Court.
During the reign of Queen Elizabeth I (1533 -1603), depending on the crime, the offender might be sent to the galley service (the beginnings of community service concept?), where the prisoners were held as slaves and chained four men to an oar on great ships of the realm. These were criminals convicted of committing less than capital crimes, but they would end up serving an equivalent to life imprisonment. The following quote from Queen Elizabeth I, offers a reference to both deterrence theory and the idea of community service, though the “service” in this case was more about serving as an example to others as well as punishing the offender and one might be hard pressed to see this punishment as tempered with clemency and mercy.
“Except when convicted of willful Murther, Rape and Burglarye,” a criminal might be reprieved from execution and sent to the galleys, “where in, as in all things, our desire is that justice may be tempered with clemency and mercy…and the offenders to be in such sort corrected and punished that even in their punishment they may yield some profitable service to the Commonwealth.”
The brutality and severeness of the judicial system was designed to not only deter individuals from committing crimes, but to deter them from challenging or speaking against those in power. It was rarely fair, unevenly dealt and ripe with corruption.
Cesare Beccaria was one of the first individuals to write in depth about deterrence as an effective way to lessen one’s chance of committing a crime. His book On Crimes and Punishments, was published in 1764 with the help of his two close friends Pietro and Allesandro Verri. The three men were also known as the “academy of fists.” A utilitarian thinker and classical theorist, Beccaria was more interested in legal reform of the current policies of the time than the development of theories on human behavior. There are three main principles in which his theory rests: all individuals possess freewill, have a rational manner and are able to be manipulated. This being the case he believed that, with the proper punishment or threat of punishment, the criminal justice system could control individuals’ tendencies to commit crime, by example or direct punishment.
It is important to note that many theories exist that attempt to explain criminal behavior. Deterrence theory in its most basic form does not seek to explain criminal behavior, merely to prevent it from occurring through law and punishment. Deterrence theory is at the heart of Classical theory by definition. Classical criminology, the beginnings of modern deterrence theory, rose as a reaction against the primitive and biased system of law, justice and punishment that existed prior to 1789.
Other theories have evolved from and molded modern deterrence theory. Casare Lombroso (1835-1909), also referred to as the “father of modern criminology,” gained much of his notoriety in the late nineteenth century. In contrast to his predecessor Beccaria, who held a classical view of crime, he approached crime theory from a positivistic perspective (the idea that human life can be explained through science) (Arjunan, 2000). The theory of differential association was coined by Edwin Sutherland, in his 1947 criminology text (International Encyclopedia if Justice Studies, 2003). His theory had nine components:
1. Criminal behavior is learned.
2. Criminal behavior is learned through interaction with others during communication.
3. The key part of learned criminal behavior occurs in intimate personal groups.
4. When criminal behavior is learned, the learned behavior includes:
· the techniques of committing the crime, those which are very complicated and those very simple and
· the specific direction of criminal motives, drives, rationalizations and attitudes.
5. The direction of the motive and/or drive is learned from the legal code as either favorable or unfavorable.
6. A person chooses delinquent behavior when they acquire an excess of favorable definitions related to the violation of laws.
7. Differential association varies in frequency, duration, priority and intensity.
8. The process of learning criminal behavior through contact with criminal and non-criminal patterns involves all the same things involved in any other type of learning.
9. Criminal behavior is an expression of general needs and values, but it is not explained by those needs, because non-criminal behavior is defined by those same needs and values.
Neoclassical theory has its foundation in classical theory. It applies some modification to the original, while keeping many of the major principles intact. Neoclassical perspectives endorse the major principles of classical theory as follows:
· As all men are created equal they should receive equal treatment under the law without bias based on status, religion, belief, wealth, sex, age, physical appearance, race, or any other circumstance beyond the act of unlawful behavior.
· Law should provide the greatest good for the greatest number of people, the majority rules.
· Human beings tend to be hedonistic and will seek pleasure and avoid pain.
· Since human beings are hedonistic, they must be restrained from unlawful acts through the fear of punishment (pain).
· Punishment must be certain, swift and proportional. The benefits of the crime should never outweigh the potential pain of the prescribed punishment.
· The certainty of prompt punishment creates fear and in so doing deters unlawful behavior.
However, neoclassical theory tempers the rigidity of the classical punishment view and allows for discretion when deciding a case (Greek, 2005). The possibility of special circumstances exist under neoclassical theory such as:
· self-defense or mistake of fact
· not all persons are completely responsible for their actions due to limitation or deficiency
· some people may be compelled by forces beyond their rational control (duress, entrapment)
· mental illness.
Classical theory, deterrent theory, is reflected in The Declaration of Independence and the US Constitution. This would seem natural, since most of the early founders of the United States were of English or European descent. Laws under which the United States operates are based on English law. Some states still refer to themselves as Commonwealths such as Pennsylvania and Virginia. Some states have modified English law or, in the case of Louisiana, operate under a different collection of laws (Louisiana operates under the Napoleonic Code). Most of today’s law is deterrent in nature with rehabilitation as a subordinate component. Our society just as others before it, attempts to offer deterrence to crime by means of the enacting of laws that punish those who commit crimes. Under classical theory and the judicial system to which we subscribe in our society, by being members of society, individuals agree to be punished, if they committed a crime in the eyes of society.
The idea of deterrence has two components: (1) specific punishment dispensed to the wrong doer to prevent them from recommitting the crime and (2) the presumed affect that fear of punishment will prevent others from committing similar crimes. One might explore the effectiveness of modern day deterrence practice in the United States by pulling a headline from the newspaper, “Two Million In Cocaine Seized.” One area where deterrence practice is performing poorly is in this country’s war on drugs. Despite the many laws set out to deter individuals from engaging in drug use, sale or related criminal activity, the number of individuals incarcerated for drug offenses (24.7%) are nearly the same as those incarcerated for violent crime (25.4%) (Bureau of Justice Statistics, 2002). The first deterrent component of punishment does not seem to be preventing these types of crimes from recurring. This country has a high recidivism rate. Between the years of 1983 and 1994 recidivism rates for drug offenders increased from 35.3% to 47.0% (Bureau of Justice Statistics, 2002). The second component also appears to fall short in that it does not seem to be preventing others from committing crimes. At least in the case of drug law, the government is moving toward change which may impact the numbers incarcerated by allowing judges to mete more appropriate sentencing rather than mandated jail time (Weslander, 2005).
The one most significant change that has occurred to deterrence theory of early years is the concept of cruel and brutal punishment. Public floggings, hangings and beheadings are no longer practiced. Imprisonment, probation, house arrest and community service are some of the most common forms of deterrent punishment used today. The death penalty does not exist in all states, but in others is still used as the ultimate deterrent for the most violent of crimes.
Deterrence theory has its roots in prehistory when it operated simply on the basis of strength and skill over weakness and lack of skill. As humans evolved, deterrence theory evolved in that people found more and more brutal ways of attempting to deter others from taking away power, property or position. Even with all this “creativity” in play, crime still occurred and still occurs today. Deterrence seems to be much like treating symptoms rather than curing disease.